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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent,

v.

JULIANA MIN CRATSENBERG,

Appellant.

No. 71448-1-1

DIVISION ONE

UNPUBLISHED OPINION

FILED: October 26, 2015

Leach, J. — Juliana Cratsenberg appeals her conviction for theft in the

first degree based on her withdrawal of funds from a bank account held jointly in

her name and her former husband's name.1 She challenges the trial court jury

instructions about ownership of joint account funds. Also, she claims her counsel

provided ineffective assistance by failing to request certain instructions and

failing to request a mistrial when a witness violated an order limiting trial

testimony. Because the record supports no inference that the disputed account

contained community property, the court properly instructed the jury, and counsel

did not provide deficient representation by failing to request a community

property instruction. And because trial counsel strategically elicited the excluded

Juliana and Andrew Cratsenberg divorced in 2011. He died in 2013.

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testimony for tactical reasons, counsel did not provide Juliana ineffective

assistance when he did not request a mistrial. We affirm.

FACTS

Andrew Cratsenberg Sr. began to see Juliana, also known as Young Min

Song, in 2008. Andrew's wife of many years died in January 2008. Andrew and

his deceased wife created and grew Cratsenberg Companies and its subsidiary,

Cratsenberg Properties, which owned commercial real estate in Federal Way.

Their sons, Andrew Jr. (Butch) and Larry, worked for the company at various

times during their lives.

In March 2008, Andrew's sons expressed concern to his physician, Dr.

Brian McDonald, about Andrew's declining cognitive abilities. In April, Dr.

McDonald administered a mini mental status exam to Andrew. An exam score

under 24 suggests patient dementia. Andrew scored a 21.

The next month, Andrew introduced his sons to Juliana. In June, Andrew

asked Butch to help Juliana move into Andrew's house. Larry disapproved of his

father's relationship with Juliana. Later that year, Larry confronted Juliana when

he found her wearing his mother's ring. Andrew fired Larry from Cratsenberg

Companies over the incident. By the fall of 2008, Butch had also left the family

business.

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With both sons gone, Andrew and Juliana managed the business. But

they failed to properly maintain the company's main property, Center Plaza. And

while Andrew had authorized Juliana's use of his KeyBank checking account,

Larry prevented Andrew from adding Juliana to the business accounts.

In January 2009, Butch and Larry filed a guardianship action against their

father. Julie Schisel, the guardian ad litem, asked psychologist Renee

Eisenhauer to evaluate Andrew. Eisenhauer concluded that Andrew was

"cognitively compromised" due to his progressive dementia. She stated that

Andrew needed assistance managing his business and financial affairs but could

live independently with support and might need more assistance as his dementia

progressed. Schisel suggested an alternative to guardianship. She

recommended that Andrew place his assets in a revocable living trust

administered by a trustee and transfer a majority interest in Cratsenberg

Companies to Butch and Larry.

Andrew and Juliana married on March 26, 2009. When Butch and Larry

learned of the marriage, they filed a petition under the vulnerable adult protection

act, chapter 74.34 RCW. They obtained a temporary order that froze Andrew's

assets and prevented Juliana from accessing them. The order placed Larry in

control of Cratsenberg Companies' operations.

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To resolve the guardianship and vulnerable adult cases, Andrew, Juliana,

Butch, Larry, their respective counsel, and Schisel signed a CR 2A agreement on

August 24, 2009. The agreement required that Andrew transfer certain assets to

family businesses and place all his remaining assets, including "[a]ll personal

bank accounts," into a living trust. The agreement declared all of Andrew's

assets his separate property and required that Andrew and Juliana sign a

postnuptial agreement.

Andrew and Juliana executed the postnuptial agreement on the same day.

It declared that each party's separate property shall remain that spouse's

separate property and that all future income would be the separate property of

the spouse generating it. In September, Andrew executed the living trust. The

trust named Commencement Bay Guardian Services director Robin Balsam and

Andrew cotrustees and designated Andrew the trust's primary beneficiary. The

trust agreement gave Commencement Bay sole control over Andrew's finances

but required it to consider Andrew's suggestions.

After execution of the documents, the Cratsenbergs refused to give

Balsam the financial information she requested, claiming it was not her business.

The couple also requested a monthly disbursement of $17,267.46, lowering the

request to $13,100.00 per month when Balsam refused. Eventually, Balsam

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approved a monthly budget of $4,592.00, paying many of the Cratsenbergs' bills

directly.

The Cratsenbergs continued to use credit cards. When Balsam noticed

large charges for cash advances and household expenses, she asked the

Cratsenbergs for an explanation. Also, she asked them to stop using the card for

cash, which defeated the purpose of the budget. When Balsam saw Andrew in

June 2010, she thought that he had declined because he appeared agitated and

was shuffling and confused. When she saw a charge for Juliana's daughter's

tuition, Balsam filed a petition with the trial court asking for instructions.

By court order, Balsam acquired the requested bank account statements.

These showed that the Cratsenbergs had been using a previously undisclosed

account at Heritage Bank. This account was opened in the names of Juliana and

Andrew in mid-July 2009. Each time the living trust made a direct deposit of

Andrew's monthly allowance into his KeyBank account, those funds were

immediately withdrawn in full or nearly in full, in cash, and deposited in the

Heritage account. Andrew's social security check was deposited directly into the

Heritage account.

The statements showed many withdrawals plus cash advances at local

casinos. For the period of September 10, 2009, to October 27, 2010, the

statements showed withdrawals of $25,304.75 at casinos and withdrawals of

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$14,000.00 from noncasino ATMs. During the charging period, all but one of the

ATM withdrawals was made with Juliana's card.

Shortly after this, Andrew suffered a stroke. Dr. McDonald and Dr.

Eisenhauer each found that Andrew displayed fairly severe symptoms of

dementia afterward. Butch and Larry visited Andrew to discuss the spending

shown in the bank account records. Butch reported that Andrew said, "I didn't

know that she was taking this money." Larry testified similarly. In November

2010, Butch and Larry filed a new guardianship petition and a petition for a

vulnerable adult protection order based on this information. They obtained a

restraining order, preventing Juliana from contacting Andrew, despite a

declaration filed on behalf of Andrew that he loved his wife, wanted to live with

her, and that they had discussed Juliana's expenditures and he did not want her

punished. Andrew and Juliana divorced in 2011.

The State charged Juliana with one count of theft in the first degree with

the aggravating circumstance that she knew or should have known that her

husband was particularly vulnerable or could not resist. The State alleged that

Juliana stole over $5,000 from her husband between September 10, 2009, and

October 27, 2010, by exerting unauthorized control over Andrew's money.

Butch testified that his father did not go to local casinos to gamble, and he

had never seen Andrew use an ATM machine.

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NO. 71448-1-1/7

Rebecca Tyrell, a financial analyst for the State, testified about the bank

account and credit card transactions. She testified that Andrew added Juliana to

the KeyBank joint checking account in November 2008. In 2009, from October to

December, cash, checks, and cash withdrawals increased. ATM withdrawals

from that account began on November 25, 2009, at a casino, and became more

frequent. After December 2009, Juliana began to sign all checks. She was also

responsible for all counter withdrawals and ATM withdrawals. All the deposits

into the account came from Andrew's resources, but the account contract

authorized both Andrew and Juliana to withdraw funds. Money withdrawn from

the KeyBank account was deposited into the Heritage Bank account. This

pattern began in the fall and winter of 2009. Juliana made most of the

withdrawals from this account. The MasterCard account with KeyBank belonged

to Andrew and his deceased wife, but in January 2010 only Andrew's name was

on the account and spending increased, including cash withdrawal transactions.

In 2010, Andrew's credit card was charged a total of $63,239.93, and an

additional $19,888.75 was withdrawn in cash advances. From September 10,

2009, to October 27, 2010, a total of $25,304.75 was withdrawn from casinos

and nearly $14,000.00 more from noncasino ATMs. In closing, the State relied

upon the credit card advances and ATM withdrawals as the acts of theft. The

juryfound Juliana guilty as charged.

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NO. 71448-1-1/8

Juliana appeals.

STANDARD OF REVIEW

This court reviews jury instructions de novo.2 This court reviews a claim of

ineffective assistance of counsel to see if counsel provided deficient

representation and if that deficient performance prejudiced the defendant.3

ANALYSIS

Juliana first asserts that the court improperly instructed the jury on the law

for ownership of funds in joint bank accounts under former RCW 30.22.090(2)

(1981)4 because it did not also include necessary instructions on community

property law. Jury instructions are sufficient where they allow parties to argue

their theories of the case, do not mislead the jury, and when read as a whole

inform the juryof the applicable law.5

Former RCW 30.22.090(2) provides that subject to community property

rights, individuals with a joint bank account own the funds in that account in

proportion to what each person deposited, unless the contract of deposit states

otherwise or at the time the account was created clear and convincing evidence

2 State v. Johnson, 180 Wn.2d 295, 300, 325 P.3d 135 (2014).3 State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).4 Effective January 5, 2015, the legislature recodified former RCW

30 22.090 as RCW 30A.22.090 (Laws of 2015, ch. 37, § 4).5 State v. Sibert, 168 Wn.2d 306, 315, 230 P.3d 142 (2010).

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of a contrary intent exists. Over Juliana's objection, the trial court gave

instruction 14 to the jury. It tracked the language in former RCW 30.22.090(2):

Funds on deposit in a joint bank account belong to eachdepositor in proportion to their ownership of the funds, unless thecontract for deposit provides otherwise or there is evidence of acontrary intent at the time the account was created. A joint bankaccount holder may have the right to withdraw funds, but this doesnot mean that the joint bank account holder owns the funds.

The State contends that State v. Mora6 supports the instruction. In Mora,

a widow opened three bank accounts. After her son and his wife were added to

the accounts, they depleted the accounts. The State charged them with 20

counts of theft.7 In affirming their convictions on all counts, the Mora court

rejected their claim that adding their names to the accounts provided them with

lawful authority to exert control over account funds.8 The court held that former

RCW 30.22.090(2) governed ownership of account funds, absent evidence of

intent to make a gift or authority to spend funds without the owner's permission.9

Juliana contends that Mora does not control when the State accuses one

spouse of stealing joint account funds from the other spouse. She correctly

notes that former RCW 30.22.090 makes the statutory account ownership rules

subject to community property rights and that a spouse generally does not

6 110 Wn. App. 850, 43 P.3d 38 (2002).7 Mora, 110 Wn. App. at 853-55.8 Mora, 110 Wn. App. at 856-57.9 Mora, 110 Wn. App. at 856-57.

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commit theft by withdrawing community funds from an account held jointly with

the other spouse.10 As a result, she claims that the trial court must include

community property principles in its instructions to the jury about joint account

fund ownership.

Juliana identifies three community property principles that she claims may

apply. First, a spouse may give the other interest in community or separate

property.11 Second, when married parties commingle separate and community

funds so that the funds may not be traced or identified, the commingled funds

become community property.12 And third, where parties do not mutually observe

a separate property agreement, the property becomes community property.13

She contends that because the trial court gave no community property

instructions, the State could argue that all assets belonged to Andrew as

separate property but Juliana could not effectively argue that she had legal

authority to access and spend community funds in the accounts.

The State responds that by signing the CR 2A and postnuptial

agreements, Juliana agreed that she did not have and would not acquire any

community property interest in the accounts. It asserts those agreements

10 State v. Coria, 146 Wn.2d 631, 638, 48 P.3d 980 (2002).11 Dean v. Lehman, 143 Wn.2d 12, 22, 18 P.3d 523 (2001); In re Estate of

Borghi, 167 Wn.2d 480, 484, 219 P.3d 932 (2009).12 Mummv.Mumm, 63 Wn.2d 349, 352, 387 P.2d 547 (1963).13Mumm, 63 Wn.2d at 352.

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NO. 71448-1-1/11

eliminated any possibility that the accounts contained any community property

funds. And it argues that the record includes no evidence showing that Andrew

intended to disregard the agreements. It also contends that the absence of

instructions about community property did not prevent Juliana from arguing that

Andrew consented to her withdrawals from the joint account. We agree with the

State.

The record contains no evidence implicating community property

principles. No evidence supports any inference that Andrew had the intent to gift

his separate property to the community. He signed a postnuptial agreement that

eliminated any possibility of community property in the accounts. He showed

signs of severe dementia at the same time Juliana withdrew and spent funds

from the account. Although he wrote a letter showing his support for Juliana, this

letter makes no indication of any intent to change the status of the funds or

approval of Juliana's exercise of control over account funds. Indeed, Butch and

Larry testified that Andrew told them that he did not know Juliana was taking

money from the accounts.

Undisputed evidence traced all the funds in each account to Andrew,

eliminating any commingling claim. The record contains no evidence that

Andrew failed to observe the agreements' property status provisions. Juliana

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has not identified any evidence implicating any community property principle in

this case.

The court's instruction defining "property of another" allowed Juliana to

defend on the basis that she acted with Andrew's permission.14 The trial court

also instructed the jury about the "good faith" defense.15 The trial court's

instruction about ownership of funds in joint accounts without any community

property law principles correctly advised the jury about the applicable law and its

instructions, as a whole, allowed each party to argue its theory of the case.

Juliana next asserts that her trial counsel provided deficient assistance

when he failed to offer the court instructions on community property principles.

Because the record does not support giving these instructions, Juliana was not

14 Instruction 11 stated, "To constitute 'the property of another,' an itemmust be one in which another person has an interest, and the defendant may notlawfully exert control over the item absent the permission of that other person."

15 Instruction 15 stated,It is a defense to a charge of theft that the property or

service was appropriated openly and avowedly under a goodfaith claim of title, even if the claim is untenable. The phrase"claim of title" means a right of ownership or entitlement topossession.

The State has the burden of proving beyond a reasonabledoubt that the defendant did not appropriate the property openlyand avowedly undera good faith claim of title. If you find that theState has not proved the absence of this defense beyond areasonable doubt, it will be your duty to return a verdict of notguilty.

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entitled to them. Her counsel did not provide deficient representation by failing to

offer community property instructions.

Juliana further asserts that her trial counsel was ineffective because he

failed to move for a mistrial after a witness testified to previously excluded

evidence.

At the beginning of trial, the court excluded evidence about an earlier civil

case brought by Butch and Larry where a different trial judge found Juliana

violated the CR 2A agreement and the vulnerable adult protection order. The

trial court also excluded use of the term "vulnerable adult" in reference to

Andrew. During defense counsel's cross-examination of Butch, counsel asked

Butch why Juliana did not receive money as provided in the postnuptial

agreement. Butch responded that it had to do with the civil lawsuit filed by

Commencement Bay. Defense counsel then asked, "What lawsuit was filed by

Commencement Bay Guardianship [sic] Services?" Butch testified that

Commencement Bay "filed a VAPO action, a Vulnerable Adult petition [order],

against Juliana, alleging that she financially exploited my dad and she physically

abused him. They were successful." Defense counsel later clarified through

Butch's attorney's testimony that the attorney had filed the VAPO action on

behalf of Butch and Larry and that Commencement Bay was never a petitioner in

a VAPO action or guardianship proceeding.

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NO. 71448-1-1/14

To establish ineffective assistance of counsel, a "defendant must show in

the record the absence of legitimate strategic or tactical reasons supporting the

challenged conduct by counsel."16 Juliana claims that no legitimate tactic could

have supported trial counsel's discussion of this information and that Butch's

testimony prejudiced her.

Trial counsel explained his approach to mitigating any prejudice caused by

Butch's improper testimony about the VAPO action. When the trial court

questioned defense counsel about why he asked the court to exclude certain

testimony only to bring it up at trial, counsel responded,

[l]t [came] as a surprise to me that [Commencement Bay GuardianServices] were the plaintiffs in the Vulnerable Adult ProtectionOrder [action].... I think it is important what happens with thismoney. It clearly shows there is potential for bias issues there andwhat happened with it.

When the trial court stated that the evidence is mostly not favorable to Juliana,

defense counsel responded, "I think it cuts both ways. If the nature of the

proceedings were known, it might not hurt as much."

Juliana's trial counsel later asked to question a witness to show the jury

that Juliana was not represented by counsel during the VAPO proceedings.

Counsel explained to the trial court, "[The State is] painting a picture of civil

proceedings, Vulnerable Adult Protection Order, that is incomplete because there

16 McFarland. 127 Wn.2d at 336.-14-

NO. 71448-1-1/15

is all this talk about Juliana being represented by counsel, and she wasn't,

necessarily." Thus, Juliana's trial counsel chose to address evidence of the

previous VAPO action, improperly before the jury due to Butch's testimony, not

by asking for a mistrial but by giving the jury a more complete picture of Juliana's

vulnerable position in that action. He also used this evidence in closing

argument to attack the "guardianship industry" and Andrew's two sons by

describing them as the ones who exercised unauthorized control over Andrew's

assets.

Thus, counsel made a tactical decision not to request a mistrial. Juliana

has not shown this decision was objectively unreasonable. Because this court

gives trial counsel wide latitude to control tactical decisions,17 counsel's

performance was not deficient.

CONCLUSION

Because the record includes no evidence that the funds in the joint

accounts could be community property, the trial court did not err when it did not

include community property principles in an instruction about ownership of funds

in a joint account. Because Juliana was not entitled to instructions about

community property principles and because trial counsel engaged in an

objectively reasonable trial tactic when he asked about previously excluded

17 In re Pers. Restraint of Stenson, 142 Wn.2d 710, 733, 16 P.3d 1 (2001).-15-

NO. 71448-1-1/16

evidence and did not move for a mistrial, Juliana's ineffective assistance of

counsel claim fails. We affirm.

WE CONCUR:

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